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Eminent domain bills gaining momentum
AMARILLO, TEXAS
(hppr) -
Mark Haslett: The Texas Legislature seems likely once again to pass one or more bills relating to the matter of eminent domain. In the 2007 session, Governor Rick Perry vetoed such a bill. Perry's veto has drawn criticism from many of his fellow Republicans, including State Representative David Swinford of Amarillo.
David Swinford: The eminent domain bill that we passed two years ago- and the governor vetoed-.was certainly the best in the nation. We plan to bring those items that was in that bill back through the legislature again.
Haslett: Governor Perry reached out to supporters of increased compensatiosn for landowners by mentioning the matter of eminent domain in last month's State of the State address. Still, questions remain whether Perry would now support a bill essentially the same as the one the Governor vetoed in the last session. Swinford recalls the sticking point that doomed the bill in 0-7.
Swinford: And the main difference that we had- and the reason the governor vetoed it- is that when it came through the House, I put an amendment on it that said that you have to have just compensation. There's a difference between market value and just compensation.
Haslett: Swinford and others maintain that compensation for landowners should reflect the property's value to the landowner rather than the market price of the real estate. A key concept in the distinction between conventional market value and what some call just compensation is the notion of diminished access.
Swinford: The difference is the highway might come up through the middle of your land. Maybe you have a creek on one side where the cattle can water and it's dry on the other side of the road. And maybe the next turnaround is 18 miles down the road so you have to go 18 miles down, cross the interstate, come back 18 miles, to get to feed your cattle on the other side of the road.
Haslett: For the current session of the Texas House, six bills relating to eminent domain have been filed. Last week, House Bill 4 was referred to the Land and Resource Management Committee. An identical companion bill has been filed in the Senate. That measure, Senate Bill 533, was authored by Senator Robert Duncan of Lubbock. Duncan's district includes the southeastern and parts of the central Panhandle. Duncan has resumed his role as a vocal proponent of changes to eminent domain law. He says that the distinction between public and private development is another issue.
Robert Duncan: The legislation that we have dealt with over the years- primarily since the Kelo decision- has been legislation that has tried to deal with the inappropriate use of eminent domain. That would be uses that are simply for economic development purposes, where you use the power of eminent domain to take property, private property from one person, and transfer it to another person for a different, or higher, use.
Haslett: The "Kelo decision" referenced by Duncan is a 2005 verdict by the United States Supreme Court in the case of Kelo versus the City of New London, Connecticut. In a five to four vote, the Court ruled that private economic development qualifies as permissible "public use" under the Takings Clause of the Fifth Amendment. Previous interpretations of the Takings Clause had limited the definition of "public use" to include only publicly-funded development projects. The ruling prompted a flurry of state-level legislation to prohibit private developers from enjoying eminent domain privileges. State Representative of John Smithee of Amarillo says that the current mood in Austin favors such legislation in Texas.
John Smithee: And I think there's been kind of a rebirth of property rights in Texas and so that's kind of where the pendulum has swung right now. I would expect, when the session is over, that the landowners would have more rights than what they presently have.
Haslett: Currently, there are four eminent domain bills in legislative committees. This is Mark Haslett, H-P-P-R News.
© Copyright 2009, hppr
(2009-02-17)
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David Swinford: The eminent domain bill that we passed two years ago- and the governor vetoed-.was certainly the best in the nation. We plan to bring those items that was in that bill back through the legislature again.
Haslett: Governor Perry reached out to supporters of increased compensatiosn for landowners by mentioning the matter of eminent domain in last month's State of the State address. Still, questions remain whether Perry would now support a bill essentially the same as the one the Governor vetoed in the last session. Swinford recalls the sticking point that doomed the bill in 0-7.
Swinford: And the main difference that we had- and the reason the governor vetoed it- is that when it came through the House, I put an amendment on it that said that you have to have just compensation. There's a difference between market value and just compensation.
Haslett: Swinford and others maintain that compensation for landowners should reflect the property's value to the landowner rather than the market price of the real estate. A key concept in the distinction between conventional market value and what some call just compensation is the notion of diminished access.
Swinford: The difference is the highway might come up through the middle of your land. Maybe you have a creek on one side where the cattle can water and it's dry on the other side of the road. And maybe the next turnaround is 18 miles down the road so you have to go 18 miles down, cross the interstate, come back 18 miles, to get to feed your cattle on the other side of the road.
Haslett: For the current session of the Texas House, six bills relating to eminent domain have been filed. Last week, House Bill 4 was referred to the Land and Resource Management Committee. An identical companion bill has been filed in the Senate. That measure, Senate Bill 533, was authored by Senator Robert Duncan of Lubbock. Duncan's district includes the southeastern and parts of the central Panhandle. Duncan has resumed his role as a vocal proponent of changes to eminent domain law. He says that the distinction between public and private development is another issue.
Robert Duncan: The legislation that we have dealt with over the years- primarily since the Kelo decision- has been legislation that has tried to deal with the inappropriate use of eminent domain. That would be uses that are simply for economic development purposes, where you use the power of eminent domain to take property, private property from one person, and transfer it to another person for a different, or higher, use.
Haslett: The "Kelo decision" referenced by Duncan is a 2005 verdict by the United States Supreme Court in the case of Kelo versus the City of New London, Connecticut. In a five to four vote, the Court ruled that private economic development qualifies as permissible "public use" under the Takings Clause of the Fifth Amendment. Previous interpretations of the Takings Clause had limited the definition of "public use" to include only publicly-funded development projects. The ruling prompted a flurry of state-level legislation to prohibit private developers from enjoying eminent domain privileges. State Representative of John Smithee of Amarillo says that the current mood in Austin favors such legislation in Texas.
John Smithee: And I think there's been kind of a rebirth of property rights in Texas and so that's kind of where the pendulum has swung right now. I would expect, when the session is over, that the landowners would have more rights than what they presently have.
Haslett: Currently, there are four eminent domain bills in legislative committees. This is Mark Haslett, H-P-P-R News.
© Copyright 2009, hppr
